On November 19, 1998, the Supreme Judicial Court’s Advisory
Committee on Lawyer Advertising submitted its draft report to the Court. The
report, among numerous other proposals, attempts to update the language of
the Mass. R. Prof. C. 7.1 to 7.5 to clarify that electronic
and computer-accessed advertising and solicitation are covered, and, in comments
to the rules, to provide guidance as to how the rules apply to issues raised
by these forms of marketing.

Until the advertising committee’s report is acted upon by
the Court, however, the Massachusetts Rules of Professional Conduct do not
explicitly address lawyers’ conduct on-line. Nonetheless, in most instances
the rules can be applied to Internet communications by the simple expedient
of analogizing to the low tech or hard-copy equivalent.

Any communication by an attorney, in whatever form and whatever
the technology, is subject to Mass. R. Prof. C. 7.1,
7.2, 7.4, and 7.5. Mass. R. Prof. C. 7.1 prohibits use
of a communication containing a false or misleading statement or claim. Mass. R. Prof. C.
7.5 is to similar effect as to firm names, letterhead, or other professional
designation.

Mass. R. Prof. C. 7.2 requires the communication
to contain the name of the responsible lawyer or law firm and includes a new
requirement that a copy or recording of an advertisement or communication
be retained for two years. Because of its interstate nature, and to avoid
misleading out-of-state viewers as to whether the lawyer is licensed in their
jurisdiction, it is preferable that an on-line communication also include
the office address and, very importantly, information on bar admissions of
the firm members. Similarly, an on-line communication probably should comply
with the ethics rules on advertising in all states in which the lawyer or
firm members are licensed.

Mass. R. Prof. C. 7.4 is the specialization
rule. It permits lawyers to hold themselves out publicly as specialists, if
true, and includes in this term any claim of expertise, any claim to concentrate
in or limit practice to a certain field, any directory listings (such as the
Yellow Pages) by field, and "any other association of the lawyer’s name
with a particular field of law." Thus, even without any express assertion
of expertise, "Mary Smith, Esq.; real estate and personal injury,"
constitutes a claim of specialization. There are additional requirements for
claiming certification by a private organization. This rule obviously applies
in its entirety to on-line communications. Lawyers engaging in marketing on
the Internet should exercise care either to offer their services only in fields
in which they are in fact specialists or to include appropriate disclaimers.

Finally, Mass. R. Prof. C. 7.3 is the
solicitation rule. The terms "solicitation" as used throughout the
disciplinary rules contemplates communications directed at specific individuals
or groups for the purpose of obtaining business or securing employment. Subject
to limitations concerning the prospective client’s physical, emotional or
mental condition, solicitation by written communication, audio or video cassette,
or other electronic materials is permitted if clearly labeled "advertising"
on its face and on the envelope or container and if copies are retained for
two years. No in-person communication, or personal communication by telephone
or electronic device, is permitted. Again, this rule clearly applies without
difficulty to the Internet. Targeted electronic communication is allowed if
labeled "advertising" and if not live or interactive but, with some
exceptions, "real time" conversations may be prohibited.

Application to specific types of on-line communications

A Web site or home page generally does not involve live
or interactive communication. Further, the contact is not unsolicited; the
user who visits the site has chosen to do so. The same would seem to be true
even if the site is or can be customized according to input from the visitor.
Such communications are clearly permissible, and--although the communication
obviously cannot be false or misleading and must comply with the specialization
and retention rules-- need not be labeled advertising.

Similarly, unsolicited postings to newsgroups seeking employment
would seem to be similar to newspaper or magazine ads. If so, such postings
are permissible and need not be labeled advertising. Note, however, that this
type of message to a newsgroup with a particular interest or purpose almost
by definition constitutes a claim of specialization, much like a directory
listing by field of practice. Only lawyers who qualify as experts should market
in this manner.

A further question is whether lawyers may respond to newsgroup
postings by individuals with legal questions. To the extent that the lawyer’s
response--even if "addressed" to the individual-- is a public notice,
open to any reader, it again would seem to be permissible if true and would
not seem to be required to be labeled as advertising. However, lawyers and
law firms should exercise caution in responding to such postings if the underlying
matter arises in a jurisdiction where no firm member or associate is admitted
to practice. A response in that circumstance may raise questions of unauthorized
practice of law in violation of Mass. R. Prof. C. 5.5(a).
In addition, lawyers need to consider issues of confidentiality or screening
for conflicts of interest and the problem of when an attorney/client relationship
is established.

Communications by e-mail to or on behalf of existing clients
raise questions of protecting client confidentiality. The trend among jurisdictions
that have recently considered the e-mail issue seems to be that it is not
a violation of client confidentiality to send confidential client communications
by unencrypted e-mail and that the lawyer need not obtain the client’s consent
to do so. See District of Columbia Bar Legal Ethics Comm., Op. 281, 2/12/98,
released 5/15/98. It may nonetheless be wise to encrypt particularly sensitive
communications, for example, those that the lawyer would hesitate to transmit
by fax or even telephone.

Unsolicited e-mail communications to prospective clients
are equivalent to direct mail solicitation and must be clearly labeled as
"advertising" and retained for two years. Lawyers soliciting by
e-mail should pay particular attention to the provisions of Mass. R. Prof. C. 7.3
prohibiting harassment or coercion and forbidding communications with prospective
clients who the lawyers knows or reasonably should know are not in physical,
emotional, or mental condition to be solicited.

Finally, there is the issue of "real time" chat
groups. A forum that has been set up by a lawyer or law firm to allow consumer
inquiries--that is, the consumers are asking to "speak" with the
law firm--is probably no different than a telephone call from a potential
client or perhaps a radio call-in show. Such a forum is therefore in theory
permissible, although again, serious attention will need to be paid to problems
such as unauthorized practice, confidentiality, and screening for conflicts,
as well as to the question of when an attorney/client relationship is established.
However, unsolicited messages from lawyers sent to "real time" chat
groups are easily analogized to in-person or live telephone communication.
This type of communication is prohibited if the content could be construed
as a solicitation.

Whatever the mode of contact, lawyers communicating with
clients or prospective clients on-line would also be well-advised to consider
including a disclaimer beyond those specifically required by the Rules of
Professional Conduct. An e-mail disclaimer might be similar to those usually
associated with faxes--for example, a warning that the recipient should not
read, copy or disseminate unless he or she is the addressee, with a further
statement as to confidentiality or privilege and a request that the recipient
notify the sender if the communication is received in error. Typical Web page
and newsgroup disclaimers may contain information as to where the lawyers
in the firm are licensed or statements that the information provided is not
legal advice and/or that no attorney-client relationship has been created
or will be created until a contract is signed. These disclaimer suggestions
are not intended as exhaustive.